Haim Gerber - State, society, and law in Islam: Ottoman law in comparative perspective
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State, society, and law in Islam: Ottoman law in comparative perspective
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Published by State University of New York Press, Albany
1994 State University of New York
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews.
For information, address State University of New York Press, State University Plaza, Albany, N.Y., 12246
Production by E. Moore Marketing by Bernadette LaManna
Library of Congress Cataloging-in-Publication Data
Gerber, Haim. State, society, and law in Islam : Ottoman law in comparative perspective / Haim Gerber. p. cm. Includes bibliographical references (p. ) and index. ISBN 0-7914-1877-4 (alk.). ISBN 0-7914-1878-2 (pbk. : alk.) 1. Justice, Administration of TurkeyHistory. 2. Islamic law TurkeyHistory. 3. IslamTurkeyHistory. 4. TurkeyPolitics and government. 5. TurkeySocial conditions. KKX1572.G47 199493-8076 340.5'9dc20CIP
10 9 8 7 6 5 4 3 2 1
Page v
Contents
Introduction
1
1. The Structure of the Ottoman Legal Process in the Seventeenth and Eighteenth Centuries
25
2. The Making of Ottoman Law: The Rise of the Kadi and the Shari'a Court
58
3. The Fetva in the Legal System
79
4. The Guilds and Customary Law
113
5. Patrimonialism and Bureaucracy in the Ottoman Political System
127
6. Summary and Conclusion
174
Notes
187
Selected Bibliography
219
Index
227
Page 1
Introduction
Outwardly, this study explores the legal structure of the core area of the Ottoman Empire between the sixteenth and early nineteenth centuries, and its relationship to the sociopolitical structure of that state. In fact, this legal structure is only the empirical data base, and the study seeks to address some wider questions that should be of interest to students of Islam and the Middle East as well as to students of historical legal anthropology. The study casts serious doubt on several fundamental notions concerning the nature of premodern Islamic societysuch as the supposed gap between theory and practice, one major expression of which was the province of law: the shari'a was sacred, yet in practice always of marginal importancea gap that had supposedly disastrous consequences for the moral integrity of the Muslim community.
In the case study presented here, this supposed gap hardly existed; and to the extent that it did exist, it was not perceived as morbid or disturbing. The fundamental question that brought me to this topic was my fascination with the (possible) causal relation between Ottoman political and social formations on the one hand and the structure of politics and society in modem Turkey and the Arab world on the other. As far as Turkey is concerned, the characteristic that I find most intriguing is the democratic form of government maintained by this polity for the last fifty years. Most sociologists and historians who deal with this question explain it away by claiming that Turkish democracy is actually false, an epiphenomenon. In this, most of them are deeply influenced by the theories of Max Weber on patrimonialism and sultanism. And in fact, confronting the ideas of Weber with the documentary
Page 2
world with which I became aquainted in Turkey twenty years ago is precisely the intellectual starting point of the present study.
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